Madras High Court
P.Susila vs A.Murugayee on 15 November, 2024
C.R.P.(MD) Nos.2265 & 2266 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 04.11.2024
Pronounced on 15.11.2024
CORAM
THE HON'BLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
C.R.P.(MD) Nos.2265 & 2266 of 2024
and
C.M.P.(MD) Nos.12813 & 12833 of 2024
1.P.Susila
W/o.Late.Periyakaruppan Servai
2.I.Divya Barathi
D/o.Late.P.Irulappan ... Petitioners in
both C.R.Ps.
Vs.
1.A.Murugayee
W/o.Late.Alagu @ Kuttai Alagu
2.M.Senthil
S/o.Maarnaatan
3.Vidhya
D/o.Late.Alagu
4.Nathiya
D/o.Late.Alagu ... Respondents in
both C.R.Ps.
Common Prayer: Civil Revision Petitions filed under Article 227 of the
Constitution of India praying to set aside the fair and decreetal common
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Page No. 1 of 17
C.R.P.(MD) Nos.2265 & 2266 of 2024
order dated 05.02.2024 passed in I.A.Nos.1 & 2 of 2023 in O.S.No.271 of
2008 on the file of the District Munsif Court, Vadipatti.
For Petitioners
in both C.R.Ps. : Mr.M.Venkatesan
For Respondents
in both C.R.Ps. : Mr.S.Chandrasekaran
*****
COMMON ORDER
Both these Civil Revision Petitions have been filed against the
common order dated 05.02.2024 passed by the District Munsif Court,
Vadipatti, in I.A.Nos.1 & 2 of 2023 in O.S.No.271 of 2008.
2. The revision petitioners, as plaintiffs, filed the above suit for bare
injunction against the respondents/defendants before the Vacation Court,
Madurai, and it was numbered as O.S.No.72 of 2007. Thereafter, the suit
was transferred to the District Munsif Court, Vadipatti, and re-numbered
as O.S.No.271 of 2008. During the pendency of the suit, the revision
petitioners/plaintiffs filed I.A.No. 354 of 2009 for amendment of the
plaint prayer, by adding the relief of declaration and recovery of
possession, which was allowed by the trial court. The said suit was
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thereafter dismissed by the learned District Munsif, Vadipatti, on
01.07.2016, against which, the revision petitioners/plaintiffs have
preferred the first appeal in A.S.No.30 of 2017 before the III Additional
Subordinate Court, Madurai [hereinafter referred to as 'First Appellate
Court'].
3. The First Appellate Court, having found that no issues were
framed in respect of declaratory relief and recovery of possession and no
findings were given by the trial court in this regard, remanded the case
back to the trial court for framing additional issues and permitting the
parties to lead evidence. After remand, the revision petitioners/plaintiffs
have filed two applications in I.A.Nos.1 & 2 of 2022 in O.S.No.271 of
2018, for amendment of the plaint and for receiving additional document.
However, the said applications were dismissed by the trial court, against
which, the present Civil Revision Petitions have been filed.
4. Mr.M.Venkatesan, the learned counsel for the revision
petitioners/plaintiffs, would submit that after filing the suit, an interim
injunction was granted by the trial court; that while the interim injunction
was in force, the first respondent's/first defendant's husband illegally
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occupied a portion of the disputed property, and therefore, the amendment
petition was filed to amend the plaint; that the revision
petitioners/plaintiffs also intended to mark rough sketch of the property as
additional evidence in order to have a fair adjudication of the dispute in
question; that neither the proposed amendment will create a new cause of
action nor will alter or change the character of the suit; that however, the
trial court, without considering these aspects, erroneously dismissed the
two applications; and, thus, the common impugned order of the trial court
passed in I.A.Nos.1 & 2 of 2023 requires interference.
5. On the other hand, Mr.S.Chandrasekaran, the learned counsel for
the respondents/defendants, would submit that the proposed amendment,
after the remand of the suit by the First Appellate Court, is beyond the
scope of the remand; that the rough sketch was prepared only to mislead
the court, which is contrary to the actual facts, and therefore, the same
cannot be received as additional evidence; that the revision
petitioners/plaintiffs have suppressed the material fact that an advocate
commissioner was appointed in I.A.No.310 of 2008, who inspected the
suit property and filed a detailed report along with a rough sketch, which
reveals that there was no encroachment by the defendants on the disputed
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property; that the proposed amendment cannot be permitted on the
grounds that the alleged trespass into the first item of the suit property and
the alleged encroachment are nothing but false statements; that the
proposed amendment is highly fictitious, and if it is permitted, it would
change the entire nature and character of the suit, which is prohibited by
law; and that, therefore, the trial court has rightly dismissed the said
applications, which calls for no interference.
6. Heard on both sides. Records perused.
7. The undisputed facts of the present case are as follows:
(a) Originally, the suit was filed for the relief of bare
injunction against the defendants.
(b) Thereafter, the prayer of the suit was amended by adding
the following prayer vide order dated 31.03.2009 passed
in I.A.No.354 of 2009:
“to declare that the plaint schedule mentioned
house sites absolutely belongs to the plaintiffs alone
and for recovery of possession from the defendants
to the extent of east-west 9 feets on the north and
the southern side and to an extent of north-south 19
feets both on the west and eastern side to the very
eastern side of the 1st item of the plaint schedule
mentioned house site in the original plaint.
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(c) The suit was dismissed by the trial court on 01.07.2016.
(d) Appeal Suit was filed in A.S.No.30 of 2017 by the
revision petitioners/plaintiffs.
(e) The First Appellate Court has set aside the order of the
trial court dated 01.07.2016 and remanded the case back
to the trial court for framing additional issues and to
permit the parties to lead additional evidence by its order
dated 16.09.2022.
(f) After remand, the revision petitioners/plaintiffs have filed
two Interlocutory Applications in I.A.Nos.1 & 2 of 2022
in the above suit in O.S.No.271 of 2018 for amendment
and for receiving additional evidence.
(g) The trial court has dismissed the above applications,
stating that the suit had been remanded for the purpose of
framing additional issues and allowing the parties to
produce further evidence in this regard, and therefore, the
requests for further amendments to the plaint and the
acceptance of additional evidence were found to exceed
the scope of the remand order.
(h) Aggrieved by this, the present Civil Revision Petitions
have been filed.
8. The question that arises for consideration in the present Civil
Revision Petitions is whether the proposed amendment can be permitted
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and the proposed document can be received as additional evidence, even
in the remand proceedings.
9. The main provision under Order VI Rule 17 of CPC would state
that the Court, at any stage of the proceedings, may entertain the
application seeking amendment of the pleadings, if the Court finds that
those amendments are very much necessary for the purpose of
determining the real issues in controversy between the parties. The
proviso found under Order VI Rule 17 of CPC would read that such an
application seeking amendment shall not be entertained after the trial has
commenced. There is also a rider thereunder that if the court comes to the
conclusion that the party, in spite of due diligence, could not come out
with such a petition seeking amendment prior to the commencement of
trial, such an application for amendment can be entertained by the Court.
10. The Hon'ble Supreme Court, in the judgment in Rajkumar
Guruwara (Dead) through LRs. v. S.K.Sarwagi & Co. Pvt. Ltd. and
another, reported in 2008 (5) CTC 253, has held that after commencement
of trial, the question of prejudice to the opposite party may arise, and in
such event, it is incumbent on the part of the Court to satisfy conditions
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prescribed in proviso to Rule 17 and the pre-trial amendments are to be
allowed liberally than those that are sought to be made after the
commencement of trial.
11. This Court, in the judgment in D.Ramanujam v.
R.Panneerselvam, reported in 2006 (3) CTC 27, has held that “when the
trial has already commenced, the present amendment petition was filed
without giving any valid reason for not filing the amendment before the
commencement of the trial. Even after the trial, the Court could not allow
the Amendment petition unless the Court is satisfied that inspite of the
due diligence, the party could not have raised the matter. In this case, the
lower Court correctly applied the proviso and came to a correct
conclusion that the plaintiff had not stated any reason in the Amendment
petition for belated filing.”
12. Firstly, the party, who comes forward with a petition seeking
amendment of the pleading, is bound to give valid reasons for not filing
the amendment petition before the commencement of the trial. The Court
also will have to address the point as to whether the party could have filed
the petition seeking amendment, had the party taken due diligence while
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dealing with the amendment petition filed after the commencement of the
trial. In short, the proviso under Order VI Rule 17 of CPC will have to be
strictly adhered to, as otherwise, the proviso found under the aforesaid
provision of law will have no meaning at all.
13. It is equally true that the court has ample power to entertain a
petition seeking amendment, if it comes to a conclusion that the
amendment is necessary to decide the real disputes that arise between the
parties. But, such a power given to the Court is circumscribed by the
proviso found under the aforesaid provision of law. The embargo found
under the proviso limits the large power found in the main proviso under
Order VI Rule 17 of CPC. Unless the Court records the existence of the
contingency provided under the proviso under Order 6 Rule 17 of CPC,
the petition for amendment after the commencement of the trial cannot be
entertained.
14. Coming to the facts and circumstances of this case, in the
supporting affidavit, it has been stated that the suit was filed in the year
2007 and numbered as O.S.No.72 of 2007 before the Vacation Court,
Madurai, which was later transferred to the trial court and re-numbered as
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O.S.No.271 of 2008. Thereafter, the husband of the first respondent/first
defendant, while the interim injunction was in force, illegally trespassed
into the first item of the suit property and occupied the same. Since the
trial court dismissed the suit, the revision petitioners/plaintiffs filed first
appeal in A.S.No.30 of 2017, in which, the III Additional Subordinate
Judge remanded the matter back to the trial court, by its order dated
16.09.2022 for framing additional issues and for permitting the parties to
lead the evidence. At this juncture, the revision petitioners/plaintiffs filed
the two applications to amend the plaint and also receive the rough sketch
as additional evidence, which were dismissed by the impugned common
order.
15. It is not in dispute that the amendment petition and the petition
for receiving documents were filed after the case was remanded by the
First Appellate Court. There can be no doubt with regard to the settled
position that the court, to which the case is remanded, has to comply with
the order of remand, and that acting contrary to the order of remand is
contrary to the law. In other words, the order of remand shall be followed
in its exclusive spirit.
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16. The amendments sought for by the revision petitioners/plaintiffs
are extracted hereunder:
1. In the body of plaint, after paragraph No: 9, add the
following as paragraphs No: 9(a) and 9(b)
"9(a) After filing of the present suit, the
defendants demolished the rented house,
wherein they were residing, adjoining the 1st
item of the suit property and all on a sudden put
up a tiled shed erecting stone pillar in that site
and also encroaching upon the 1st item of the
suit property on the south-eastern side to an
extent of East-West 9 Ft. and North-South 19
Ft. Since there was no surrounding wall, the
defendants never resided in the above tiled
house.
9(b) Hence, the suit is filed for the relief
of declaration to declare that the plaintiffs
alone are the absolute owners of the suit
scheduled mentioned properties and
consequentially for recovery of the possession
of the portion encroached by the defendant to
an extent of East-West 9 Ft. and North-South 19
Ft. on the south-eastern side of the 1st item of
the suit property from the defendants. Herewith
a rough sketch showing the suit property and
the portion encroached upon the 1st item of the
suit property by the defendants is filed. The
rough sketch may be treated as the part and
parcel of the plaint.
2. In 2nd line of the para 10 of the plaint, after the
words 'trespassed into the' add the following:
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'remaining portion of the'
3. In line 6 of the para 10 of the plaint, before the word
'plaint schedule', add the following:
'remaining portion of the'
4. In para 11, after the word 'section' add '25(a)'
5. In para 12, after the word 'to trespass into the suit
property' add the following:
'during the last week of July 2007, when the
defendants encroached upon the eastern side of
the 1st item of the suit property'
6. In the penultimate line of the paragraph (a) of the
prayer column in the amended plaint, insert the words
'as depicted in the rough sketch' after the words '1st
item of the suit property'.
7. In the penultimate line of the paragraph (b) of the
prayer column in the amended plaint, insert the words
'remaining portions of the' after the words 'enjoyment
over the'.
8. Add the following as the last line in the 1st item of
the Schedule of Property, 'out of this east-west 9 Ft.
north-south 19 Ft. is encroached by the defendants. It is
clearly shown in the rough sketch'.
17. On fact, it is seen that the revision petitioners/plaintiffs
proposed to amend the plaint on the grounds hereunder:
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i. The amendment is with regard to the facts already
narrated in the plaint as an additional approach,
which is also within the scope of a remand order;
ii. The First Appellate Court remanded the case back to
the trial court for framing additional issues and for
permitting the parties to lead the evidence on the
question of declaration of title and recovery of
possession; and
iii. The proposed amendment is also connected with the
above issues, and therefore, the proposed amendment
does not introduce a new case or a new cause of
action and is only based on the same cause of action.
18. Since the necessary facts are already set out in the plaint, the
addition of further facts related to the same cause of action, by way of
amendment, would not result in the introduction of a new cause of action.
It is true that the revision petitioners/plaintiffs have not set out the details
of the facts, but this does not preclude the revision petitioners/plaintiffs
from seeking an amendment to add additional facts to the plaint. Unless
the additional facts introduce a new case or cause of action, the same
cannot be permitted. Moreover, the amendment sought for is necessary for
a decision of the real dispute between the parties which is, what are their
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rights in the suit property. That dispute was clearly involved in the plaint
as originally framed. All the necessary basic facts have been stated.
19. Therefore, even after remand, the amendment of the plaint can
be allowed for the purpose of determining the real controversy between
the parties and avoiding multiplicity of the proceedings and ensuring that
substantive justice is done. There is nothing on record to show that the
said amendment would alter the original cause of action and introduce a
new case. Furthermore, by marking the rough sketch, no prejudice will be
caused to the other side. On the other hand, it would assist the Court to
determine the issue in question. In fact, the remand order also indicates
the same. The First Appellate Court has remanded back the matter to the
trial court on the premise that no findings were rendered by the trial court
with regard to other reliefs claimed in the plaint i.e., declaratory relief and
recovery of possession. Hence, the First Appellate Court has directed the
trial court to frame additional issues and permit the parties to lead
evidence. Necessarily, to establish the rights of the revision
petitioners/plaintiffs, the revision petitioners/plaintiffs have to lead
evidence. Hence, receiving the rough sketch is only within the scope of
remand. Therefore, the proposed amendment and receiving the additional
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evidence will only serve ultimate justice. Moreover, the
respondents/defendants have an opportunity to cross-examine the witness
with regard to the truthness of the amended pleadings and to test the
veracity of the proposed documents. Whether the said document can be
relied or not, the trial court is at liberty to determine the same while
deciding the case.
20. In the light of the facts and circumstances of the case on hand, I
am of the view that the impugned common order dated 05.02.2024 in
I.A.Nos.1 & 2 of 2023 in O.S.No.271 of 2008 warrants interference of this
Court. Therefore, the impugned common order dated 05.02.2024 is liable
to be set aside and is accordingly set aside.
21. The revision petitioners/plaintiffs are directed to carry out the
necessary amendments in the plaint, within a period of two weeks from
the date of receipt of a copy of this order.
22. The trial court, i.e., the District Munsif Court, Vadipatti, is
directed to permit the revision petitioners/plaintiffs to carry out the
amendments in the plaint and receive the additional document, and
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dispose the suit on its own merits, untrammeled by any of the
observations made by this Court in this order.
23. In the result, this Civil Revision Petitions are allowed. No
costs. Consequently, the connected Miscellaneous Petitions are closed.
15.11.2024
Index: Yes/ No
Neutral Citation: Yes / No
Speaking Order/Non-Speaking Order
JEN
Copy To:
The District Munsif,
Vadipatti,
Madurai District.
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C.R.P.(MD) Nos.2265 & 2266 of 2024
K.GOVINDARAJAN THILAKAVADI, J.
JEN
Pre-Delivery Common Order made
in
C.R.P.(MD) Nos.2265 & 2266 of 2024
and
C.M.P.(MD) Nos.12813 & 12833 of 2024
15.11.2024
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